Nairobi, Kenya: The Law Society of Kenya (LSK) has said that a Cabinet decision to freeze adoption of children by foreigners over alleged trafficking is unconstitutional.
LSK Secretary/CEO Apollo Mboya said that the Cabinet has no powers to approve a moratorium on any law.
“The constitution has no provision that allows the Cabinet to suspend operation of any law at any given time,” Mboya said.
He said that the LSK Council will hold a meeting on Monday, February 16 to explore options for appropriate remedies, including legal proceedings to cite the Cabinet for breach of the Constitution.
The Cabinet held its 10th meeting at State House on November 27th last year and approved several policy issues among them a moratorium on Inter Country Adoption.
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The Cabinet decision froze indefinitely inter-country adoptions of Kenyan children by foreigners.
Cabinet Secretary-Labour, Social Security and Services Kazungu Kambi communicated the child adoption ban to Adoption Societies countrywide in a letter dated 22nd December 2014.
“The Cabinet also revoked all licenses to conduct inter-country adoptions in Kenya with immediate effect,” the LSK Secretary said.
Mboya said that by freezing child adoptions, the Cabinet failed to appreciate the laws governing adoption and constitutional provisions on children matters.
“The Government has also breached international obligations and conventions it earlier ratified on children,” Mboya said.
He said that the Cabinet breached the constitution by cancelling licenses of all agencies involved in international adoption.
“Article 132 (5) enjoins the President to ensure international obligations of the Republic are fulfilled through actions of relevant Cabinet Secretaries,” Mboya said.
Legally, an international adoption can only proceed if both the Government and the Government of the applicants’ origin are satisfied that requirements set by laws of each country have been met before obtaining a certificate of approval from both countries.
Most of the applicants spend over two years working through the approval mechanism in both countries.
“It is illogical to allege that counterpart Governments and their officers are engaged in child trafficking,” Mboya said.
He said that counterpart Governments are equal partners in the process (adoption) and if there is suspicion in any step, any of the Government can step in and stop the particular case instead of condemning the adoption process.
“The Cabinet seems to be insinuating that Advocates who are Child Law Practitioners and the Judiciary are abetting the vice of child trafficking by seeking and granting of adoption orders,” Mboya said.
The LSK Secretary said that it is impossible to obtain an adoption order without following the due process of the law.
“The Government should arrest and charge all those alleged to be in the unscrupulous business of child trafficking, if at all,” Mboya said.